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Lloyd Noland Hospital v. Durham1/7/2005
. P., dictates that
" o judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of ... error as to any matter of ... procedure, unless in the opinion of the court to which the appeal is taken ... after examination of the entire case, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." vFurther, pertinent to the charge the trial judge gave the reconstituted jury is the following feature of Rule 51, Ala. R. Civ. P.:
"No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless that party objects thereto before the jury retires to consider its verdict, stating the matter objected to and the grounds of the objection."
Given the limited grounds for a mistrial presented to the trial judge and the corresponding narrow scope of our review and the steps the trial judge took to attempt to counteract the potential for the particular prejudice about which the Hospital expressed concern, including an admonitionary final charge to the jury, to which no objection was made, we cannot say that the trial judge committed reversible error in denying the Hospital's motion for a mistrial on the juror-substitution issue.
II. Weight of the Evidence
The Hospital next contends that the trial court erred in denying its motion for a new trial because, it says, "the jury's verdict is contrary to the great weight and preponderance of the evidence." (Hospital's brief, at 43.) The standard of review of an order denying a new-trial motion on the ground that the verdict is against the weight of the evidence is well established. "No ground for reversal of a judgment is more carefully scrutinized or rigidly limited than the ground that the verdict of the jury was against the great weight of the evidence." Christiansen v. Hall, 567 So. 2d 1338, 1341 (Ala. 1990). "A jury verdict is presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial." Med Plus Props. v. Colcock Constr. Group, Inc., 628 So. 2d 370, 374 (Ala. 1993).
"'Moreover, the denial of a motion for a new trial [on the ground that the verdict is against the weight and preponderance of the evidence] will not be reversed by this Court unless, after allowing all reasonable presumptions as to the verdict's correctness, the preponderance of the evidence is so against it that this Court is clearly convinced that it is wrong and unjust.'"
628 So. 2d at 374 (quoting Deal v. Johnson, 362 So. 2d 214, 218 (Ala. 1978)). The denial of such a motion "'rests within the sound discretion of the trial court, and this Court will not reverse a ruling in that regard unless it finds that the trial court's ruling constituted an abuse of discretion.'" Vaughan v. Oliver, 822 So. 2d 1163, 1170 (Ala. 2001) (quoting Colbert County-Northwest Alabama Healthcare Auth. v. Nix, 678 So. 2d 719, 722 (Ala. 1995)).
The factual issue, as the Hospital defines it, is whether the nursing staff of the Hospital "breached the applicable standard of care by failing to give [Durham] a pre-operative antibiotic, or in failing to question [Dr. McGrady's] handwritten orders that did not include an order that a pre-operative antibiotic be given." (Hospital's brief, at 43-44.)
It is undisputed that the nursing staff followed Dr. McGrady's admission orders, which did not prescribe a preoperative antibiotic. Durham's theory of the case, however, is that the Group had supplied the Hospital with "standing orders" to be used in admitting patients being trea
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